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As filed with the Securities and Exchange Commission on August 11, 2000
Registration No. 333-__________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
________________
WatchGuard Technologies, Inc.
(Exact name of Registrant as specified in its charter)
Delaware 91-1712427
(State of incorporation) (I.R.S. Employer Identification No.)
316 Occidental Ave. South, Suite 200
Seattle, Washington 98104
(Address of principal executive offices)
_______________________
2000 Stock Option Plan
(Full title of the Plan)
_______________________
Christopher G. Slatt
President, Chief Executive Officer and Chairman of the Board
WatchGuard Technologies, Inc.
316 Occidental Ave. South, Suite 200
Seattle, Washington 98104
(206) 521-8340
(Name, address and telephone number, including area code, of agent for service)
_______________________
Copy to:
Stephen M. Graham
Orrick, Herrington & Sutcliffe LLP
701 Fifth Avenue, Suite 6500
Seattle, Washington 98104
(206) 839-4300
(Calculation of Registration Fee on following page)
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CALCULATION OF REGISTRATION FEE
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Proposed
Maximum Proposed Maximum Amount of
Amount to Be Offering Price Aggregate Registration
Title of Securities to Be Registered Registered(1) Per Share Offering Price Fee
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<S> <C> <C> <C> <C>
2000 Stock Option Plan
Common Stock,
$0.001 par value, not subject to
outstanding options or not having fixed
exercise price........................... 3,000,000 shares $56.375(2) $169,125,000 $44,649
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(1) This Registration Statement shall also cover any additional shares of
Common Stock that become issuable under the Plan being registered pursuant
to this Registration Statement by reason of any stock dividend, stock
split, recapitalization or any other similar transaction effected without
the receipt of consideration which results in an increase in the number of
the Registrant's outstanding shares of Common Stock.
(2) Estimated in accordance with Rule 457(h) under the Securities Act solely
for the purpose of calculating the registration fee. The computation is
based upon the average high and low sales prices of the Common Stock as
reported on the Nasdaq National Market on August 10, 2000.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The following documents filed with the Securities and Exchange Commission
(the "Commission") are hereby incorporated by reference:
(a) The Registrant's Annual Report on Form 10-K/A for the fiscal year ended
December 31, 1999 filed pursuant to Section 13(a) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), which contains audited financial
statements for the Registrant's latest fiscal year for which such statements
have been filed.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the Annual Report
referred to in (a) above.
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed with the Commission under
Section 12(g) of the Exchange Act on July 26, 1999, including any amendment or
report filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-
effective amendment that indicates that all securities offered hereby have been
sold or that deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be part
hereof from the date of filing such documents.
Item 4. Description of Securities. Not applicable.
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Item 5. Interests of Named Experts and Counsel. None.
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Item 6. Indemnification of Directors and Officers.
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Section 145 of the Delaware General Corporation Law (the "DGCL") provides
that a corporation may indemnify its directors and officers, as well as other
employees and individuals, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement in connection with specified
actions, suits or proceedings, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation--a
"derivative action"), if they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful. A similar standard is
applicable in the case of derivative actions, except that indemnification only
extends to expenses (including attorneys' fees) incurred in connection with the
defense or settlement of such actions, and the statute requires court approval
before there can be any indemnification in which the person seeking
indemnification has been found liable to the corporation. The statute provides
that it is not exclusive of other indemnification that may be granted by a
corporation's charter, bylaws, disinterested director vote, stockholder vote,
agreement or otherwise.
Section 10 of the Registrant's Restated Bylaws requires indemnification to
the full extent permitted under Delaware law as it now exists or may hereafter
be amended. Subject to any restrictions imposed by Delaware law, the Restated
Bylaws provide an unconditional right to indemnification for all expense,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid in settlement) actually and reasonably
incurred or suffered by any person in connection with any actual or threatened
action, suit or proceeding, whether civil, criminal, administrative or
investigative (including, to the extent permitted by law, any derivative action)
by reason of the fact that such person is or was serving as a director or
officer of the Registrant or that, being or having been a director or officer of
the Registrant, such person is or was serving at the request of the Registrant
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, including service with respect to an
employee benefit plan.
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The Restated Bylaws also provide that the Registrant may, by action of its
Board of Directors, provide indemnification to its employees and agents with the
same scope and effect as the foregoing indemnification of directors and
officers.
Section 102(b)(7) of the DGCL permits a corporation to provide in its
certificate of incorporation that a director of the corporation shall not be
personally liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability for (a) any
breach of the director's duty of loyalty to the corporation or its stockholders,
(b) acts or omissions not in good faith or that involve intentional misconduct
or a knowing violation of law, (c) payments of unlawful dividends or unlawful
stock repurchases or redemptions, or (d) any transaction from which the director
derived an improper personal benefit.
Article 10 of the Registrant's Restated Certificate of Incorporation
provides that to the full extent that the DGCL, as it now exists or may
hereafter be amended, permits the limitation or elimination of the liability of
directors, a director of the Registrant shall not be liable to the Registrant or
its stockholders for monetary damages for breach of fiduciary duty as a
director. Any amendment to or repeal of such Article 10 shall not adversely
affect any right or protection of a director of the Registrant for or with
respect to any acts or omissions of such director occurring prior to such
amendment or repeal.
The Registrant maintains directors' and officers' liability insurance,
under which the Registrant's directors and officers may be indemnified against
liability they may incur for serving in their capacities as directors and
officers of the Registrant.
Item 7. Exemption from Registration Claimed. Not applicable.
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Item 8. Exhibits.
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Exhibit
Number
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<C> <S>
5.1 Opinion of Orrick, Herrington & Sutcliffe LLP regarding legality of the Common
Stock being registered.
23.1 Consent of Orrick, Herrington & Sutcliffe LLP (included in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, Independent Accountants.
24.1 Power of Attorney (see signature page).
99.1 WatchGuard Technologies, Inc. 2000 Stock Option Plan
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Item 9. Undertakings.
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The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement;
(2) that, for purposes of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(3) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
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The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Insofar as the indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in a
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered hereunder, the Registrant will, unless in the opinion of its counsel
the question has already been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question of whether such indemnification
by it is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
[Signature Page Follows]
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Seattle, State of Washington, on this 11th day of
August, 2000.
WATCHGUARD TECHNOLOGIES, INC.
By: /s/ Christopher G. Slatt
--------------------------
Christopher G. Slatt
President, Chief Executive Officer
and Chairman of the Board
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Christopher G. Slatt and Steven N. Moore,
jointly and severally, his attorneys-in-fact and agents, each with the power of
substitution and resubstitution, for him and in his name, place or stead, in any
and all capacities, to sign any amendments to this Registration Statement on
Form S-8, and to file such amendments, together with exhibits and other
documents in connection therewith, with the Securities and Exchange Commission,
granting to each attorney-in-fact and agent, full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and
about the premises, as fully as he might or could do in person, and ratifying
and confirming all that the attorneys-in-fact and agents, or his substitute or
substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated below on August 11, 2000.
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Signature Title
<S> <C>
/s/ Christopher G. Slatt President, Chief Executive Officer and Chairman of
-------------------------------------------------- the Board (Principal Executive Officer)
Christopher G. Slatt
/s/ Steven N. Moore Executive Vice President of Finance, Chief Financial
-------------------------------------------------- Officer, Secretary, Treasurer and Director (Principal
Steven N. Moore Financial and Accounting Officer)
/s/ Stuart J. Ellman Director
--------------------------------------------------
Stuart J. Ellman
Director
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Andrew W. Verhalen
/s/ Charles P. Waite Director
--------------------------------------------------
Charles P. Waite
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INDEX TO EXHIBITS
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Exhibit
Number
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<C> <S>
5.1 Opinion of Orrick, Herrington & Sutcliffe LLP regarding legality of the Common
Stock being registered.
23.1 Consent of Orrick, Herrington & Sutcliffe LLP (included in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, Independent Accountants.
24.1 Power of Attorney (see signature page).
99.1 WatchGuard Technologies, Inc. 2000 Stock Option Plan
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